Private colleges and universities are the latest to feel the effects of the more union-friendly National Labor Relations Board (NLRB). In a recent ruling, the Board concluded in unprecedented fashion that it has jurisdiction under the National Labor Relations Act over non-tenure-eligible faculty at private religious institutions who are not performing a specific religious function, while also establishing a more rigorous standard for the faculty manager exclusion.

In the case, a union filed a petition seeking to represent a unit of about 176 non-tenure-eligible contingent faculty members at a Lutheran university. The university challenged the petition, contending they were an exempt church-related institution, and about 39 of the putative unit members were managers who should be excluded from the unit. The Board’s regional director rejected those contentions and determined that the university was not a religious institution, and none of the faculty had enough responsibility to be considered managers.

In its ruling endorsing the conclusions of the regional director, the Board found that while the university did hold itself out as providing a religious educational environment, it did not hold the faculty out as performing any religious function; nor did it expect the faculty to contribute anything specific to the religious educational environment. For these reasons, the Board professed to see no distinction between the faculty at the religious institution and those at other non-religious institutions under NLRB jurisdiction and, therefore, no encroachment on the religious mission of the university.

Moreover, the Board surmised that colleges and universities have increasingly been run by administrators and become more corporate with the consequence that faculty have lost authority, especially contingent faculty such as those at issue in the case. Because of the loss of faculty authority, the Board decreed they may no longer be excluded from unionization as managers. To analyze whether faculty are, in fact, managers and excluded, the Board laid out an entirely new set of criteria, including faculty control of academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions. Greater weight is to be given to the first three factors. None of the university faculty was deemed a manager under this new standard.

As has happened recently with several of the Board’s controversial rulings, the decision came out over the dissent of NLRB member Harry I. Johnson III, who asserted that the 1979 U.S. Supreme Court case of NLRB v. Catholic Bishop of Chicago“soundly rejected the board’s attempt to exert its jurisdiction over ‘church-operated’ schools,” and that various federal appellate courts have rejected prior attempts of the NLRB to assert such jurisdiction. The dissent also pointed out that many colleges and universities have long relied on the Supreme Court’s 1980 decision in NLRB v. Yeshiva University for the proposition that full-time faculty are managers because private education is not structured like a corporation, and faculty members have substantial managerial authority.

While the ultimate result of the university’s situation remains unclear due to a potential appeal, in the interim, there are several other disputes pending involving non-tenure-eligible faculty at religious colleges and universities to which this ruling will be applied. Those institutions may now have new difficulties in attempting to fend off unionization. There is also the distinct possibility that unions throughout the country will attempt to use the new test for managers to extend unionization to tenured faculty. It looks as though academia may soon become the next major front where unions attempt to grow their ranks, which have been steadily shrinking in most industries throughout the country.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.